1. The authors of the
communication (initial submission dated 9 March 1989 and subsequent
correspondence) are Errol Gentles, Lorenzo Kerr and Dennis Douglas, three
Jamaican citizens awaiting execution at St. Catherine District Prison,
Jamaica. They claim to be the victims of a violation of their human rights
by the Government of Jamaica. They are represented by counsel.

2.1 The authors were
charged with the murder, on 30 August 1980, of one Howard Campbell, in the
Parish of Clarendon, Jamaica. No identification parade was held following
their arrest. During their trial before the Clarendon District Court, from
31 March to April 1981, they maintained that they were innocent and
testified that they had been elsewhere when the crime occurred. On 14 April
1983, the Jamaican Court of Appeal dismissed their appeal. Subsequently,
they filed a petition for special leave to appeal to the Judicial Committee
of the Privy Council; this was dismissed on 6 October 1988.

2.2 The authors state that
the deceased was sitting on a bench by the roadside in the village of
Woodside, Clarendon, when a van with armed men passed through the village.
These men, together with two motor cyclists, began to molest and attack the
villagers. The prosecution contended that the raiders had acted with
intention to kill. In particular, they caught the deceased, beat and stabbed
him to death. Furthermore, as the attack occurred during the campaign for a
general election, it was suggested that it could have had political
overtones.

2.3 The authors claimed to
be innocent and denied to have taken part in the raid. In particular, Mr.
Gentles' uncle supported the author's alibi defence, testifying that he had
been home with him at the time in question. The authors further claim that
no identification parade was held following their arrest. In this
connection, Lorenzo Kerr and Errol Gentles claimed, in their petition for
special leave to appeal to the Privy Council, that identification evidence
was central to their case: they alleged that three police constables who
testified during the trial were invited by the prosecution to identify them
from the dock; this, however, happened seven months after the murder. Thus,
the principal ground of appeal was that the trial judge in his summing-up to
the jury misdirected the jurors on the issue of identification evidence and
permissibility of dock identification, that he erred in not pointing out the
dangers inherent in such method of identification. Moreover, they argued
that the trial judge, in reviewing the identification evidence, did not
remind the jury that, during the preliminary inquiry, one of the constables
who testified against them had not stated that he had seen the authors
stabbing the deceased.

2.4 Messrs. Kerr and
Gentles add that the Court of Appeal, when dealing with the issue of
identification evidence, rejected the authors' appeal and observed: "In our
view, the learned trial judge in directing the jury on the dangers inherent
in visual identification had in mind R. v. Whylie 27 W.I.R. The language of
the directions is the language of that case". The authors object to this
reasoning and, by reference to relevant case law, contend that the dangers
inherent in dock identification have been recognized by the courts in most
Commonwealth countries.

2.5 As to the case of
Dennis Douglas, it is claimed that the trial judge erred in not putting the
issue of manslaughter to the jury. Without an alternative manslaughter
verdict to consider, the jury was bound to convict him of murder after
rejecting his alibi defence.

3. By decision of 27
March 1989, the Special Rapporteur of the Human Rights Committee on cases
involving the death penalty, transmitted the communication, under rule 91 of
the rules of procedures, to the State party, requesting information and
observations relevant to the question of the admissibility of the
communication. The authors were requested to provide the Committee with the
text of the written judgment of the trial court and the Court of Appeal. The
State party was further requested, under rule 86 of the rules of procedure,
not to carry out the death sentence against the authors while their
communication was under consideration by the Committee.

4. In its submission
under rule 91, dated 20 July 1989, the State party contends that the
communication should be declared inadmissible on the ground of
non-exhaustion of domestic remedies, as required by article 5, paragraph 2
(b), of the Optional Protocol. Although the authors' petitions for leave to
appeal to the Judicial Committee of the Privy Council were dismissed, they
had been submitted in respect of their criminal cases; consequently, the
authors would still have constitutional remedies open to them, which they
must pursue in respect of the alleged violations of the Covenant. The State
party points out that, at the earliest stage of the Committee's deliberation
on a communication, all the alleged violations of the Covenant and the
articles to which such violations relate should be identified by the
Committee.

5. In a further
submission from the authors, dated 11 August 1989, it is stated that the
authors were victims of a miscarriage of justice, in that the police did not
place them on an identification parade. It is further submitted that they
did not have an opportunity to consult with the court-appointed lawyers
assigned to their appeals.

6. In her comments,
dated 7 September 1989, counsel rejects the State party's contention that
constitutional remedies remain open to the authors and submits that the
authors lack the means to retain a lawyer to submit a constitutional motion
to the Supreme (Constitutional) Court. Furthermore, there are no provisions
in the Poor Prisoner's Defence Act for legal aid to be made available for
that purpose; notwithstanding, the Jamaican Council for Human Rights had
made considerable but successful efforts to retain lawyers on a pro bono
basis. Counsel contends that if a constitutional remedy is available
theoretically to the authors, this is not the case in practice, due to the
unavailability of legal aid. She concludes that a remedy which cannot be
pursued in practice is not an available remedy and that accordingly, the
communication should be declared admissible.

7.1 Before considering any
claims in a communication, the Human Rights Committee must, in accordance
with rule 87 of its rules of procedure, decide whether or not it is
admissible under the Optional Protocol to the Covenant.

7.2 The Committee has
ascertained, as it is required to do under article 5, paragraph 2 (a), of
the Optional Protocol, that the same matter is not being examined under
another procedure of international investigation or settlement.

7.3 The Committee has
taken note of the State party's contention that the communication is
inadmissible because of the author's failure to pursue constitutional
remedies available to him under the Jamaican Constitution. In this
connection, the Committee observes that Section 20, paragraph 1, of the
Jamaican Constitution guarantees the right to a fair trial, while Section 25
provides for the implementation of the provisions guaranteeing the rights of
the individual. Section 25, paragraph 2, stipulates that the Supreme
(Constitutional) Court may "hear and determine" applications with regard to
the alleged non-observance of constitutional guarantees, but limits its
jurisdiction to such cases where the applicants have not already been
afforded "adequate means of redress for the contraventions alleged" (Section
25, paragraph 2, in fine). The Committee notes that the State party was
requested to clarify, in a number of interlocutory decisions, whether the
Supreme (Constitutional) Court has had the opportunity to determine,
pursuant to section 25, paragraph 2, of the Jamaican Constitution, whether
an appeal to the Court of Appeal and the Judicial Committee of the Privy
Council constitute "adequate means of redress" within the meaning of section
25, paragraph 2, of the Jamaican Constitution. The State party has replied
to these interlocutory requests in the negative. Taking into account the
State party's clarification,, together with the absence of legal aid for
filing a motion in the Constitutional Court and the unwillingness of
Jamaican counsel to act in this regard without remuneration, the Committee
finds that recourse to the Constitutional Court under section 25 of the
Jamaican Constitution is not a remedy available to the author within the
meaning of article 5, paragraph 2 (b), of the Optional Protocol.

7.4 The Committee has
considered the material submitted to it by the authors' counsel, including
the authors' petitions for special leave to appeal to the Judicial Committee
of the Privy Council. On the basis of this information, the Committee notes
that the claims of Dennis Douglas are based on the sole issue of the trial
judge's failure to properly direct the jury on the possibility of a
manslaughter verdict. It also take note of Lorenzo Kerr's allegation that
the judge instructed the jury improperly on the evaluation of identification
evidence and the permissibility of dock identification. The Committee
reiterates that, although article 14 guarantees the right to a fair trial,
it is not in principle for the Committee to review specific instructions to
the jury by the judge in a trial by jury, unless it can be ascertained that
the instructions to the jury were clearly arbitrary and amounted to a denial
of justice. The Committee does not dispose of sufficient evidence that the
trial judge's instructions suffered from such defects. The Committee
therefore, concludes that this part of the communication is unadmissible as
incompatible with the provisions of the Covenant, pursuant to article 3 of
the Optional Protocol.

7.5 In as much as the
authors' allegations about inadequate opportunities to consult with their
counsel are concerned, the Committee notes that they relate to article 14,
paragraphs 3 (b) and (d) and 5; they should accordingly, be considered on
the merits.

8. The Human Rights
Committee therefore decides:

(a) The communication is
admissible inasmuch as it may raise issues under article 14, paragraphs 3
(b) and (d) and 5, of the Covenant;

(b) In accordance with
article 4, paragraph 2, of the Optional Protocol, the State party shall be
requested to submit to the Committee, within six months of the date of the
transmittal to it of this decision, written explanations or statements
clarifying the matter and the measures, if any, that may have been taken by
it;

(c) The State party shall
be requested, under rule 86 of the Committee's rules of procedure, not to
carry out the death sentence against the author while his communication is
under consideration by the Committee. This request does not imply a
determination on the merits of the communication;

(d) Any explanations or
statements received from the State party shall be communicated by the
Secretary-General under rule 93, paragraph 3, of the Committee's rules of
procedure, to the author and his counsel, with the request that any comments
that they may wish to submit thereon should reach the Human Rights Committee
in care of the Centre for Human Rights, United Nations Office at Geneva,
within six weeks of the date of the transmittal;

(e) This decision shall
be communicated to the State party, to the author and to his counsel.